Why only the state may inflict criminal sanctions: The case against privately inflicted sanctions

Legal Theory

Volumn 14, Issue 2, 2008, Pages 113-133

  Harel, Alon ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

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EID: 84961138181     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S135232520808004X     Document Type: Article

References (36)

1. For contemporary advocates of shaming sanctions, see Dan Kahan, What Do Alternative Sanctions Mean?, 63 Chi. L. Rev. 591-653 (1996) Dan M. Kahan & Eric A. Posner, Shaming White-Collar Criminals: A Proposal for Reform of the Federal Sentencing Guidelines, 42 J.L. & Econ. 365-391 (1999). In a recent article, Dan Kahan expresses reservations concerning his earlier advocacy of shaming penalties. See Dan Kahan, What's Really Wrong with Shaming Sanctions, 84 Tex. L. Rev. 2075 (2006).
2. See Douglas C. McDonald, Public Imprisonment by Private Means: The Re-emergence of Private Prisons and Jails in the United States, the United Kingdom, and Australia, 34 Brit. J. Criminology 29 (1994).
3. See the Offender Management Bill in the British Parliament, available at http://www.publications.parliament.uk/pa/cm200607/cmbills/009/2007009.pdf.
4. See, e.g., Stephen P. Garvey, Can Shaming Penalties Educate?, 65 U. Chi. L. Rev. 748-749 (1998) Alon Harel & Alon Klement, The Economics of Stigma: Why More Detection of Crime May Result in Less Stigmatization, 36 J. Legal Stud. 355-378 (2007).
5. See H.L.A. Hart, Prolegomenon to the Principles of Punishment in Punishment and Responsibility: Essays in the Philosophy of Law 1, 4-5 (1968).
6. The part of the civil law bearing the strongest resemblance to the criminal law is the law of tort. Consequently, textbooks of criminal law often start by differentiating between criminal law and tort law. See, e.g., Glanville Williams, Textbook of Criminal Law 25 (2nd ed. 1983).
7. These are the examples provided in George Fletcher, Rethinking Criminal Law (1978), at 412.
8. Asserting that the agency of the state is a “noncontingent normative precondition for the just infliction of punishment” raises questions concerning the nature and the strength of this normative precondition. The normative-precondition justification would not preclude the possibility that there may be circumstances under which nonstate agents can justly inflict criminal sanctions. Yet the normative-precondition justification maintains that under normal conditions, there are central features of the state that make it the only agent that can inflict criminal sanctions. Radical transformation of the state or of other agents may open the possibility that other agents would justly inflict criminal sanctions. The conditions that could justify such a change ought to be more extreme than those that would justify such a change under the instrumental view. A simple change in the costs of privately inflicted sanctions or in the deliberative powers of the state or private agents would not suffice to justify transferring the power to inflict sanctions from the state to private agents.
9. See John Locke, Two Treaties of Government: Second Treatise sec. 13 (Peter Laslett ed., 1960).
10. See Dennis C. Mueller, II Public Choice (1989), at 9-15.
11. See R.A. Duff, Trials and Punishments (1986), at 198.
12. See Thomas E. Hill, Kant on Wrongdoing, Desert, and Punishment, 18 L. & Phil. 407, 425 (1999).
13. Duff, Kant on Wrongdoing note 12, at 198. For a clarification and defense of the claim that the guilty deserve to suffer, see Lawrence H. Davis, They Deserve to Suffer, 32 Analysis 136-140 (1972). For a very careful articulation of desert theories, see Hill Kant on Wrongdoing note 13, at 413-414. Hill distinguishes between practical or action-guiding desert theories and merely faith-guiding or wish-expression desert theories. The former argue that perpetrating crimes provides one a reason to inflict sufferings on the guilty while the latter argue merely that perpetrating crimes provides one a reason to wish that the guilty suffer. It is clear that a justification of punishment ought to be based on a strong, i.e., action-guiding desert theory.
14. See R.A. Duff, Punishment, Communication and Community 23-27 (2001).
15. See Jeffrie G. Murphy & Jean Hampton, Forgiveness and Mercy 3-4 (1988).
16. See Gary Becker, Crime and Punishment: An Economic Approach, 76 J. Pol. Econ. 169-217 (1968).
17. Economic advocates of deterrence theories have often argued for the use of “bounty hunters” to detect crime. See, e.g., Mitchell Polinsky, Private Versus Public Enforcement of Fines, 9 J. Legal Stud. 105-127 (1980) Steven Shavell, The Optimal Structure of Law Enforcement, 36 J. L. & Econ. 255-287 (1993). The advocates of shaming penalties also share the belief that privately inflicted sanctions may be a better way of preventing crime. See Kahan, What Do Alternative Sanctions Mean?, Crime and Punishment: An Economic Approach note 1 Kahan & Posner, Shaming White-Collar Criminals, Crime and Punishment: An Economic Approach note 1 Kahan, What's Really Wrong, Crime and Punishment: An Economic Approach note 1.
18. Locke, Economic advocates of deterrence theories have often argued for the use of “bounty hunters” to detect crime note 9, at 87.
19. See, e.g., Pamela Barmash, Homicide in the Biblical World 24 (2005).
20. See Joel Feinberg, The Expressive Function of Punishment, in A Reader on Punishment 74 (R.A. Duff & David Garland ed., 1994).
21. Immanuel Kant, The Metaphysics of Morals 106 (Mary Gregor trans., ed., 1996).
22. This conclusion follows from the interpretation given to this section by Thomas Hill, who believes that Kant's theory of punishment is a mixed theory. Establishing the practice of punishing wrongdoers is designed to protect freedom rather than to inflict deserved sanctions. Once this scheme is established, state officials are required to impose sanctions as prescribed by law without deviating for pragmatic reasons. This section is understood by Hill to highlight the officials’ duty to apply the law, i.e., to “reaffirm the idea that those responsible for enforcing the law must apply the legally prescribed sanctions without concern for whether punishment has any deterrent value in the particular case.” See Hill, The Metaphysics of Morals 106 note 13, at 433. After the dispersion of the state, there are no officials who are charged with the responsibility of imposing sanctions prescribed by law. Hence the infliction of suffering cannot be justified as a part of the faithful fulfillment of the officials’ duties.
23. To establish the alleged naturalness of parenthood, think of a community in which parents are barred from inflicting sanctions on their children and the power to inflict sanctions is assigned to the parents’ closest neighbors. Such a practice could be justified on the grounds that loving parents may be too soft and consequently that the sanctions they are likely to inflict on their children are too lenient. Neighbors, under this view, are less partial and more objective in their judgments concerning punishment. I suspect many would reject such a proposal as preposterous not merely because of the flaws in its factual premises. The resistance to such a proposal rests on the conviction that the power to punish “belongs” to the parents or that it is “natural” that parents are the ones who have the power to inflict sanctions and that stripping parents of their power to punish should be equated with stripping parents of parenthood.
24. The integrationist justification is hardly a novelty in the literature on parenthood. One influential argument suggests that the power to command and the duty to care are interrelated. See Saint Augustine, XIX City of God ch. 14 (Penguin Books, 2003).
25. Law and economics theorists have often advocated such a position. In the context of tort law, see, e.g., Robert Cooter & Ariel Porat, Should Courts Deduct Non-Legal Sanctions from Damages?, 30 J. Legal Stud. 401-422 (2001).
26. See, e.g., Richard Bierschbach & Alex Stein, Overenforcement, 93 Geo. L.J. 1743, 1750-1752 (2005). Even theorists who support the substitutability of state-inflicted and privately inflicted sanctions concede that this is not the general view. See, e.g., Douglas Husak, Already Punished Enough, 18 Phil. Topics 79 (1990). An interesting indication of the reluctance to take into account sufferings resulting from privately inflicted sanctions can be found in German criminal law. Section 51 of the German Criminal Code, entitled “Crediting,” requires courts to deduct sanctions imposed by courts for the same offense but it does not indicate that privately inflicted sanctions ought to be deducted. The German Criminal Code differentiates sharply between state-inflicted sanctions and privately inflicted sanctions.
27. See Husak, Overenforcement note 28, at 85. Husak himself, however, rejects this view.
28. Pragmatic concerns were often raised against shaming penalties. There are many who believe that shaming penalties are erratic and unreliable. See, e.g., Garvey, Overenforcement note 28 note 4. Others have pointed out that the more criminals are detected, the lesser the effectiveness of shaming penalties is. See Harel & Klement, Overenforcement note 28 note 4.
29. All conventional definitions of punishment include reference to such a requirement. See, e.g., Hart, Pragmatic concerns were often raised against shaming penalties note 5, at 4-5.
30. This way of articulating my claim is borrowed from the discussion of Scanlon's defense of freedom of speech. See Thomas Scanlon, A Theory of Freedom of Expression, 1 Phil. & Pub. Aff. 204, 212 (1972).
31. See James Q. Whitman, What Is Wrong with Inflicting Shame Sanctions?, 107 Yale L.J. 1055, 1091 (1998).
32. See Harel & Klement, This way of articulating my claim is borrowed from the discussion of Scanlon's defense of freedom of speech note 4.
33. See Richard Posner & Eric Rasmusen, Creating and Enforcing Norms, With Special Reference to Sanctions, 19 Int. Rev. L. & Econ. 369, 371 (1999).
34. See Sharon Dolovich, State Punishment and Private Prisons, 55 Duke L.J. 437, 441 (2005).
35. For an examination of this claim, see McDonald, State Punishment and Private Prisons note 2, at 39.
36. See Michael Walzer, Hold the Justice, New Republic, April 1985, at 12.